Wpc kerala hc

1. 'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.25092 OF 2020(J)
PETITIONER :-
TREASA JOSFINE, AGED 25 YEARS
D/O.BRUNO KUNJUMON, THYTHOPPIL HOUSE,
SAKTHIKULANGARA P.O., KOLLAM - 691 581.
BY ADVS.
SRI.P.R.MILTON
SRI.GEORGE VARGHESE (MANACHIRACKEL)
RESPONDENTS :-
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
INDUSTRIES (H) DEPARTMENT,
THIRUVANANTHAPURAM - 695 001.
2 THE MANAGING DIRECTOR
THE KERALA MINERALS AND METALS LTD.,
SANKARAMANGALAM, CHAVARA,
PIN - 691 583, KOLLAM.
ADDL. 3 UNION OF INDIA,
REPRESENTED BY IT'S SECRETARY,
DEPARTMENT OF LABOUR, RAFI MARG,
NEW DELHI – 110 011.
(ADDL.R3 IMPLEADED AS PER ORDER DATED 20-11-2020
IN IA 1/2020 IN WP(C) 25092/2020).
R1 BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN
R2 BY ADV. SMT.LATHA ANAND
R3 BY SRI.P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:

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JUDGMENT 'CR'
Dated this the 9th
day of April, 2021
The prayers in this writ petition are as follows :-
“(i) Issue a writ of mandamus or any other appropriate writ,
order or direction to call for the records relating to Exhibit
P7 notification dated 24.10.2020 for the post of safety officer
and quash the same as illegal and unconstitutional.
(ii) Issue a writ of mandamus or any other appropriate writ,
order or direction to declare that section 66(1)(b) of the
Factories Act, 1948 is unconstitutional as violative of Article
14, 15 and 16 of the Constitution.
(iii) Issue a writ of mandamus or any other appropriate writ,
order or direction to the second respondent to issue a fresh
notification to the post of safety officer, incorporating the
qualified Women Candidates.”
2. Heard the learned counsel for the petitioner, the learned
Government Pleader, the learned Standing Counsel appearing for
the 2nd
respondent and the learned Assistant Solicitor General of
India appearing for the 3rd
respondent.
3. It is submitted that the petitioner is an engineering
graduate in Safety and Fire Engineering. The 2nd
respondent, a public
sector undertaking under the State of Kerala, has engaged the
petitioner as Graduate Engineer Trainee (Safety) and the petitioner
had worked as such for the period from 19.11.2018 to 18.11.2019 and
from 26.11.2019 to 25.5.2020. It is submitted that there is a

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permanent post of Safety Officer available in the company. By Ext.P7,
a notification was published inviting applications for the said post.
However, it is stated in the notification that only male candidates
need apply for the post. The petitioner has approached this Court
challenging the said provision in the notification on the ground that it
is discriminatory and that the right of the petitioner for being
considered for appointment as Safety Officer is violated due to the
said provision. The petitioner further contends that any provision as
contained in Section 66(1)(b) of the Factories Act, 1948 to the extent
it denies the right of the petitioner to participate in the selection for
appointment as Safety Officer is violative of the valuable rights
guaranteed to the petitioner under Articles 14, 15 and 16 of the
Constitution of India and is, therefore, liable to be set aside.
4. A counter affidavit has been placed on record by the 2nd
respondent. It is stated that the post of Safety Officer is a statutory
post and the provisions of the Factories Act have to be complied with
while issuing notification for filling up the said post. It is submitted
that as per Section 66(1)(b) of the Factories Act, 1948, women
employees shall not be required or permitted to work except between
6 a.m. and 7 p.m. It is submitted that Graduate Engineer Trainee
(Safety) is required to work only from 9 a.m. to 5 p.m. However, it is
submitted that Safety Officer is a round the clock post and that the

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person engaged as Safety Officer will have to work even during night
time, if required. It is stated that the company had, vide letter dated
22.7.2020, sought the opinion of the Director of Factories and Boilers,
Kerala about the possibility of including women candidates in the
recruitment process for selection to the post of Safety Officer by
Ext.R2(a) letter. However, the Director had clarified that women
cannot be engaged in factories beyond 7 p.m. and that therefore,
permission cannot be accorded for considering women for the
appointment. It is, therefore, contended that there is no illegality in
excluding women from applying for the post of Safety Officer. It is
stated that Section 66(1)(b) is a social welfare measure intended to
safeguard the security and health of employees and cannot be held to
be discriminatory or violative of the petitioner's rights. It is further
contended that the vires of Section 66(1)(b) had been considered by a
Division Bench of this Court in Leela v. State of Kerala [2004 (5)
SLR 28] and it was held that the provision is only a protective
measure intended for the welfare of women and that it does not deny
opportunity or livelihood to women employees. It is submitted that
there is every power in the Government to regulate working hours of
employees to meet the concerns of welfare of the employees and the
larger public interest and that therefore, the provision is perfectly
legal and valid. It is submitted that the respondents have not denied

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opportunity to the petitioner and were only obeying the statutory
mandate of the Factories Act. It is further contended that no
provision in an enactment can be struck down as being arbitrary or
unreasonable and that the issue stands covered against the petitioner.
Several decisions of the Apex Court are also relied on in support of
the said contention.
5. A reply statement has been placed on record by the
petitioner.
6. A statement has been filed by the 1st
respondent as well,
wherein, it is stated that the Labour Department has informed that
draft ordinance for amendment of the Factories Act, 1948 enabling
women employees to work night shifts was approved by the Council of
Ministers on 5.8.2020 and the Labour Department has issued a letter
to the Secretary, Ministry of Home, Government of India for approval
of the Hon'ble President of India for the said amendment. It is
submitted that the amendment has not been brought into effect and
that therefore, going by the present situation, the restriction for
women to be engaged in factories after 7 p.m. and before 6 a.m.
continues in force.
7. I have considered the contentions advanced. The issue is
simply whether the provisions contained in Section 66(1)(b) of the
Factories Act, 1948 would stand in the way of the 2nd
respondent

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considering the application of the petitioner for appointment as
Safety Officer. Section 66 reads as follows :-
“66. Further restrictions on employment of women.- (1) The
provisions of this Chapter shall, in their application to women in
factories, be supplemented by the following further restrictions,
namely:-
(a) no exemption from the provisions of section 54 may be
granted in respect of any woman;
(b) no woman shall be required or allowed to work in any
factory except between the hours of 6 A.M. and 7 P
.M.:
Provided that the State Government may, by notification in
the Official Gazette, in respect of any factory or group or class or
description of factories, vary the limits laid down in clause (b), but
so that no such variation shall authorize the employment of any
woman between the hours of 10 P
.M. and 5 A.M.;
(c) there shall be no change of shifts except after a weekly
holiday or any other holiday.
(2) The State Government may make rules providing for
the exemption from the restrictions set out in sub-section (1), to
such extent and subject to such conditions as it may prescribe, of
women working in fish-curing or fish-canning factories, where the
employment of women beyond the hours specified in the said
restrictions is necessary to prevent damage to, or deterioration in,
any raw material.
(3) The rules made under sub-section (2) shall remain in
force for not more than three years at a time.”
8. A Division Bench of this Court in Hindustan Latex Ltd. v.
Maniamma [1994 (2) KLT 111] considered the issue and held that
the provisions of Section 66(1)(b) can only be a protection against

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exploitation of a woman worker by requiring her to work during night
hours without her consent. Construing the provisions of Article 15,
the Division Bench held that what is meant by special provision for
women provided in clause (3) thereof is only a special provision in
favour of women. Relying on the decisions of the Apex Court as well
as other High Courts, it was held that a provision which has the
protection under Article 15(3) cannot be struck down merely because
it may amount to discrimination solely on the ground of sex. It was
held that only such special provisions in favour of women can be
made under Article 15(3), which are reasonable and do not obliterate
or render illusory the constitutional guarantee enshrined under
Article 16(2). It was further held that in a case where the woman
herself seeks a consideration of her appointment which would involve
waiving of the special privilege which is being granted to her under
Section 66(1)(b), the State cannot rely on the said apparently
beneficial provision to deny an appointment which the petitioner
would otherwise be eligible for.
9. A learned Single Judge of this Court in Omana Oomen v.
F.A.C.T. Ltd. [1990 (1) KLT 614] had considered a challenge against
denial of appointment to women employees on the ground that they
have to work in night shifts. Considering the factual aspects, where
other women had been appointed to the same post earlier and where

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male employees were working in day shifts, it was held that Section
66(1)(b), which is a protective provision, cannot be relied on to deny
appointment to the petitioners only on the ground that they are
women. It was held that the company could have moved the
Government for a permission as provided in the proviso to Section
66(1)(b), which was not done. It was, therefore, held that since it is
possible for the company to accommodate male technicians
exclusively in day shifts as asserted by the petitioners, the denial of
employment to the petitioners on the ground that they would have to
work night shifts was not sustainable.
10. In Leela v. State of Kerala [2004 (5) SLR 28], a Division
Bench of this Court was considering a challenge to Section 66(1)(b) of
the Factories Act. The petitioner therein had challenged the
promotion given to a junior hand as Supervisor (Binding), on the
ground that she could not be required to work between 7 p.m. and 6
a.m. as provided under Section 66(1)(b). The Division Bench
considered the issue and held that Section 66(1)(b) is a beneficial
provision and does not provide a bar against employment of women.
It was held that the provision under challenge is a special provision
which enjoys the protection of Article 15(3) and does not embody a
principle of discrimination on sex but is calculated to save women
from the hazards of working during night in factories. It was held

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that the proviso to Section 66(1)(b) is only an enabling provision and
exemptions granted in certain industries cannot apply across the
board. It was further held that the provision was calculated to ensure
the women shall be able to take care of their families and that
children do not suffer. The decision of the Andhra Pradesh High
Court in K.S.Triveni & Ors. v. Union of India & Ors. [2002 Lab.I.C.
1714] and that the Madras High Court in Vasantha R. v. Union of
India & Ors. [2001-II-LLJ 843] as well as of this Court in Rajamma v.
State of Kerala & Ors. [1983 KLT 457] were considered and it was
held that in the case on hand, there was no discrimination based on
sex. The contentions were, therefore, rejected and it was held that
the provision of Section 66(1)(b) embodies a special provision in
favour of women and does not suffer from the vice of discrimination.
11. The Madras High Court in Vasantha R. v. Union of India
& Ors. [2001-II-LLJ 843] had considered a similar challenge to
Section 66(1)(b). It was held that the provision which denies an
opportunity for women to work during night hours where they are
desirous of doing so, for betterment of their employment prospects
would be violative of the provisions of Articles 14, 15 and 16 of the
Constitution and had struck down the said provision as being
discriminatory.

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12. The Andhra Pradesh High Court had also occasion to
consider a similar challenge and it was held that the provision could
not stand in the way of a woman being employed during night hours
unless there is a compulsion on the part of the employer on the
woman to carry out her duties in a factory during the night time.
13. This Court, in Sanuja v. Kerala State Beverages
Corporation Ltd. [2017 (1) KLT 44] had considered a challenge to
Rule 7(37) of the Abkari Shops (Disposal in Auction) Rules, 2002
which provided that women cannot be engaged to work in foreign
liquor shops. After consideration of the case law on the point as also
the changed circumstances, this Court held that the restriction
against women being employed in liquor outlets would violate the
provisions of Articles 14, 15, 16 and 19 of the Constitution. The
provisions were, therefore, held to be discriminatory and violative of
the provisions of Articles 14 and 15.
14. Having considered the contentions advanced, I find that
the basic contention urged by the respondent is that the provisions of
Section 66(1)(b) are beneficial in nature and are intended to protect
women from exploitation. In the factual situation involved, we have
to consider the fact that Factories Act, 1948 was enacted at a time
when requiring a woman to work in an establishment of any nature,
more so in a factory, during night time could only be seen as

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exploitative and violative of her rights. Apparently, the World has
moved forward and women who were relegated to the roles of home
makers during the times when the enactment had been framed have
taken up much more demanding roles in society as well as in
economic spheres. We have reached a stage where the contributions
made by women in the spheres of economic development cannot be
ignored by any industry. Women are being engaged to work during all
hours in several industries including Health Care, Aviation and
Information Technology. Women have been engaged in several
professions requiring round the clock labour and have proved
themselves quite capable of facing the challenges of such
engagement. The Apex Court in Secretary, Ministry of Defence v.
Babita Puniya and others [(2020) 7 SCC 469] has declared that an
absolute bar on women seeking command appointment violates the
guarantee of equality under Article 14 of the Constitution. It was held
that submissions based on stereotypes premised on assumptions
about socially ascribed roles result in gender discrimination against
women and violate their fundamental rights. In the present scenario,
to say that a graduate engineer in safety engineering cannot be
considered for appointment as Safety Officer in a public sector
undertaking because of an offending provision under Section 66(1)(b)
of the Factories Act, according to me, is completely untenable and

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unacceptable. This is evident from the fact that the State of Kerala
has approved an amendment to the Rules which permits the
engagement of women on condition that all safety precautions and
facilities for such engagement are arranged by the employer.
15. True, a Division Bench of this Court considered the issue
and held that Section 66(1)(b) is only a protective provision. If that
be so, it can be operated and exercised only as a protection and
cannot be an excuse for denying engagement to a woman who does
not require such protection any more. The decision in Hindustan
Latex Ltd.'s case cited supra and the subsequent laying down of the
law by the Apex Court would make it abundantly clear that a woman
who is fully qualified cannot be denied of her right to be considered
for employment only on the basis of her gender. It is the bounden
duty of the respondents who are Government and Government
functionaries to take all appropriate steps to see that a woman is able
to carry out the duties assigned to her at all hours, safely and
conveniently. If that be so, there would be no reason for denying
appointment to a qualified hand only on the ground that she is a
woman and because the nature of the employment would require her
to work during night hours. I am, therefore, of the opinion that the
embargo contained in Ext.P7 that 'only male candidates can apply' is
violative of the provisions of Articles 14, 15 and 16 of the Constitution

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of India. The said provision in Ext.P7 notification is, therefore, set
aside. I reiterate the finding of the Division Bench that the provisions
of Section 66(1)(b) are only protective in nature. I make it clear that
such protective provisions cannot stand in the way of a woman being
considered for employment for which she is otherwise eligible.
There will, accordingly, be a direction to the 2nd
respondent
to consider the application submitted by the petitioner for
appointment to the post of Safety Officer, notwithstanding the
provisions of Section 66(1)(b) of the Factories Act, 1948. Appropriate
action shall be taken without further delay.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN
JUDGE
Jvt/30.3.2021

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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEGREE CERTIFICATE OF THE FACULTY
OF ENGINEERING, ISSUED BY THE COCHIN UNIVERSITY OF
SCIENCE AND TECHNOLOGY REGISTER NO.16143048.
EXHIBIT P2 TRUE COPY OF THE CALL LETTER DATED 26/9/2018
ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER
DATED 26/9/2018.
EXHIBIT P3 TRUE COPY OF THE OFFER ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER NO.TP/PD/R44(A)/18
DATED 22/10/2018.
EXHIBIT P4 TRUE COPY OF THE PERSONNEL ORDER ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER NO.TSP/PD/RS-93/18
DATED 19/11/2018.
EXHIBIT P5 TRUE COPY OF THE REENGAGEMENT LETTER ISSUED BY THE
2ND RESPONDENT COMPANY TO THE PETITIONER
NO.TSP/PD/RS-93/19 DATED 19/11/2019.
EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER DATED
10/11/2020.
EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 24/10/2020
ISSUED BY THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R2(a) TRUE COPY OF THE LETTER DATED 22.07.2020 ISSUED
BY KMML TO THE DIRECTOR OF FACTORIES AND BOILERS,
KERALA.
EXHIBIT R2(b) TRUE COPY OF THE REPLY LETTER RECEIVED FROM THE
DIRECTOR OF FACTORIES AND BOILERS, KERALA DATED
24.08.2020.
EXHIBIT R1(a) TRUE COPY OF LETTER No.LBRD-b2/118/2020/LBRD
DATED 28.10.2020 (ALONG WITH THE PROPOSED
AMENDMENT ORDINANCE).
//TRUE COPY//
P.A. TO JUDGE